Social Justice and Solidarity as Criteria for Fiscal Equalization
Thomas O. Hueglin
Wilfrid Laurier University, Canada
For the purpose of this paper I will define fiscal equalization as the
redistribution of uneven revenue for the purpose of providing citizens across
subnational boundaries in a federal state with equitable public services. This
definition contains a narrower meaning of equalization than the one called for
by the German Basic Law with its obligation for the provision of “equitable
living conditions” (Art. 72(2)). Equitable living conditions can be achieved by
a variety of policy means that include fiscal equalization but go beyond it. The
German “joint tasks,” for example, or the Structural Funds in the case of the
European Union, aim at the provision of equitable living conditions by means
of regional development policy and/or joint program financing. The narrower
scope of fiscal equalization in turn finds exemplary expression in the
stipulation of Section 36(2) of the 1982 Canadian Constitution Act as the
provision of “reasonably comparable levels of public services at reasonable
comparable levels of taxation” for all provincial jurisdictions. Art. 106 (2.3) of
the Basic Law contains a similar provision on revenue distribution with
reference to a more onerous “uniformity of living conditions.”
According to public finance theory, the allocation of revenue sources in
systems of divided jurisdiction should follow principles of proportionality yet
bear in mind mobility threats (Oates 1972; Boadway and Shah 2009).
Governments should have guaranteed access to revenue sources in proportion
to their expenditure needs so that constitutionally assigned tasks can be
accomplished autonomously and remain accountable to the citizens whose
money is spent. At the same time, while mobile tax sources (income, wealth)
should be centralized in order to prevent a tax race to the bottom, immobile tax
sources (property, natural resources) are safer candidates for decentralization.
As a consequence, there is in practice both vertical fiscal imbalance (VFI)
because some of the revenue sources with the highest yield (income) are
typically centralized, and horizontal fiscal imbalance (HFI) because of regional
differences in resource endowment as well as uneven economic development
more generally.
The material need for fiscal equalization across jurisdictions in this
sense arises both from equitability obligations and proportionality
requirements. A more normative justification of fiscal equalization, however, is
embedded in the conceptualization of federalism itself. It pertains to (1) the
mutual promise of federal comity, (2) existential guarantees of membership
equality, (3) the acknowledgment of collective group liberty, (4) checks and
balances as a prerequisite for the rule of law, and (5) subsidiarity as a
principled guideline for power allocation at the lowest possible level.
(1) Federal Comity (Bundestreue)
The creation of a federal state is typically based on a carefully negotiated
agreement for a common constitutional order among its constituent members.
This makes federal constitutional orders different from those in unitary
political systems, which may come about by revolutionary fiat (France) or
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incremental evolution (Britain). By pledging themselves to this constitutional
order, the constituent members of a federation commit to principles of mutual
aid and respect. This commitment is not usually written explicitly into
constitutional documents but rather emerges as “unwritten constitutional law”
(Wolf 2000) from constitutional intent. In the German Basic Law, it flows
from the obligation to maintain a federal order in Article 20
(Bundesstaatsgebot). In a landmark decision, the German Federal
Constitutional Court declared, for example, that the “federal principle” obliges
“all other members of the federal community” to extend “aid” to a particular
member afflicted by a “budgetary emergency” (BVerfG 86, 148 UPR 1992).
The obligation to maintain a federal order, in other words, not only
pertains to the explicitly institutional division of powers between different
levels of government but also includes an implicitly procedural commitment to
federal comity (Bundestreue) in the sense that the members of a federation
have an obligation to act in such a way as to make the maintenance of the
federal order meaningful to all in an existential and/or material sense.
Belgium, where mutuality is severely tested by deep cultural diversity,
may be the only case with an explicit obligation to “federal loyalty” (loyauté
fédérale), which was written into the 1993 constitution (Article 143(1)). The
fact, however, that in practice not much loyal love is lost between Flemings
and Walloons in Belgian federalism (Maesschalck and Van de Walle 2006),
only goes to show that federal comity in and by itself is not justiciable. But it
provides an important normative yardstick for the interpretation of a federal
constitution in its rights-based provisions of equitability.
3
Mutual aid is one of the most basic yet profound principles of political
philosophy. It had its origin in the Aristotelian postulation of human beings as
community-building beings (zoon politikon). In the early-modern
conceptualization of federalism, the Politica of Johannes Althusius (1614), the
principle of mutuality among Aristotelian citizens first was applied to a federal
commonwealth in which the constituent members obligate themselves to
uphold the common order through “mutual communication” (mutua
communicatione; IX.1), the equitable sharing of “goods, services and rights”
(rebus, operis, juribus; I.7). In the nineteenth century, mutualism as a form of
political and economic solidarity became a rallying cry against liberal state and
market and the neglect of social justice (Proudhon 1863; Kropotkin 1902). In
the twentieth century, it resurfaced in theories of “integral federalism”
(Roemheld 1977; Conze 2005) seeking to deconstruct competitive capitalism,
which was held responsible for dictatorship and war, into a quasi-socialist
regime of mutual economic cooperation parallel to political federalization.
As reconstructed after dictatorship and war, federalism in West
Germany after 1945 surely was not a socialist project, and neither was the
process of European integration begun with the European Coal and Steel
Community in 1951. What can be said, however, is that the principle of federal
comity contains a commitment to mutual trust and help, which runs counter to,
and is meant to run counter to, the competitive forces of liberal market
societies and the representation of their territorially particularized interests in
federal systems.
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(2) Membership Equality
To postulate that the members of a federation ought to practice federal comity
by acting on noble principles of mutual trust and help as implied by their
original agreement is one thing. To actually get them to do it is quite another.
In his discussion of various forms of federal union, Althusius was quite clear
what it would take: only through “federal equality” would “peace and
friendship come about,” and this in turn would allow for “mutual help” (aequo
federe in pacem & amicitiam venirent . . . licet auxilia mutua; XVII.49). At
first glance, at least, the requirement of membership equality would appear to
be hardly in need of explanation or justification. As in any other partnership,
loyalty and stability require that the membership of each is full and not
dependent on the goodwill of the stronger or richer. Mutual help is an
obligation and not a charity at the discretion of those who can afford it.
Federal constitutions secure membership equality in several ways. As
in the case of the aforementioned provisions for fiscal equalization, they do
this on the basis of equitability rather than equality in an absolute sense. First,
they divide powers between the two levels of government. In doing so, they
assign to the constituent member units exclusive or concurrent spheres of
political action, and they normally do so equally, with the same set of powers
for each member. If the constitutional agreement was really meant to secure
rights and powers equally for all members, such an agreement obviously only
makes sense if it is backed up with the material capacity to do act upon those
rights and powers.
5
As in discussions of liberal market societies, the question is whether
equality is meant to be equality of opportunity only in the sense that the
members of a federation are given equal rights or powers as a starting point for
autonomous political action, but are then left to fend for themselves; or
whether it is meant to be equality – or at least equitability – in a deeper sense
including material guarantees that give meaning to rights and powers. It is
inconsistent with this latter and deeper meaning of membership equality, for
example, when, as in the case of the German “joint tasks,” the richer Länder
can finance certain project even when joint planning does not accord them
priority, whereas poorer Länder have to abstain from applying for prioritized
funds they are entitled to because they cannot co-finance them (Benz 2010).
Constitutionally guaranteed member equality is backed up by
deliberatively difficult amendment rules, super-majoritarian approval in both
legislative chambers of a bicameral federal system, for instance, a two-step
process of approval and ratification at both levels of government, or even
direct plebiscitarian approval. These rules are meant to be difficult because
constitutional amendment constitutes a change to the original agreement. Just
how extensive subsequent agreement to constitutional change should be is a
matter of confederalism v. federalism. In more confederal systems as the
European Union, for instance, treaty changes require unanimity. In most of the
established federations, some form of qualified majority is required.
Majority rule of any kind poses a threat to member equality. Its only
and merely practical justification is efficiency. In its famous normative
justification by John Locke, however, majority rule is thought to be legitimate
because all citizens of a commonwealth are assumed to share the same interest,
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the preservation and protection of property however defined (1690). A citizen
on the minority or losing end of a decision is thought to still have enough in
common with the majority position so that the decision can be tolerated: ‘you
win some and you lose some,’ as the American saying goes. In federal
systems, the same logic applies with the only difference that the winners and
losers are collectivities. As they agree to be part of a union, the constituent
members of a federal system are assumed to have acknowledged that they have
enough in common that some form of qualified majority rule can be tolerated.
Contrary to formalized majoritarian democracy, however, federal
systems are characterized not only by what has been called ‘compound
majoritarianism’ (Elazar 1987), the required approval of two different
manifestations of the popular will in the bicameral process of national
legislation, and an even higher threshold for constitutional change, but also a
need for cooperation that is grounded in the federal division of powers by
which what happens at one level of government, or in one part of the
federation, inevitably also has repercussions on the other level and other parts.
Bismarck understood that when he negotiated with his counterparts despite
Prussian might and the numerical ability to force majority decisions
(Lehmbruch 2000), and the participants in European Council of Ministers
meetings are aware of this when they routinely negotiate consensus instead of
resorting to qualified majority rule (J. Lewis 2013).
As the Supreme Court of Canada admonished intergovernmental
litigants in a recent decision, the constitutional intention of federalism is
“balance” (SCC 66, 2011). Balance requires respect, or, in Althusian terms,
friendship and trust. Friendship and trust in turn are possible only on the basis
7
of equality. Equal rights are meaningless without at least equitable means to
act upon them. Without ignoring serious arguments about transfer dependency
and the lack of incentives for performance improvement that may or may not
result from excessive fiscal equalization (Jeffrey 2002; Spahn and Föttinger
1997; Renzsch 2002), the federal bargain contains a fundamental commitment
to the correction not only of locational inequality resulting from structural
economic weakness but also and more essentially of the imbalances of an
otherwise self-destructing market (Polanyi 1944; Picketty 2014). ‘Competitive
federalism’ in this sense is a contradiction in terms. It questions not just the
wisdom of fiscal equalization as written into the Basic Law but the federal
form in its entirety.
That federal form is not narrowly based on an asymmetrical
relationship of net transfer payers and net transfer receivers. It is meant to be a
symmetrical relationship that is comprehensive because it is reciprocal and
balanced. The net transfer receivers contribute to the stability of a larger
market. The public services they provide reduce mobility costs. In the case of
universities, for instance, their students can study where infrastructural and
living costs are likely to be lower. Contrary to neoclassical economics,
federalism is not a competitive positive sum game with its trickle-down
assumptions. It is a zero sum game in which equality means sharing of scarce
resources through fair redistribution.
(3) Group Liberty
Federalism, however, is more than an economic game about the most efficient
allocation of scarce resources. It is also more than a system of fair
8
redistribution, which the liberal welfare state can undertake by means of
individual income stabilization. Federalism is different in that it recognizes
group liberty alongside individual liberty (Elazar 1987).
The federalist claim of group liberty is related to one of the most
profound questions of philosophical inquiry: whether human beings are
‘unencumbered’ individuals in the sense that their identities exist prior to, and
independently of, any social, economic or political membership (Rawls 1971),
or whether these identities are indeed ‘embedded’ in the sense that they cannot
be separated from shared communal practices and are defined by such
practices (Sandel 1982; Walzer 1983; Kymlicka 2002). Normative
justifications of federalism similarly emphasize that human beings naturally
live in a plurality of smaller and larger communities with shared beliefs and
practices, that federalism in this sense is a natural form of political
organization, and that, in other words, “all social life is federalist in character”
(Jerusalem 1949: 6-9).
Federalism, however, is primarily a territorial organization of plurality.
While it can be assumed safely that territoriality coincided with community in
pre-modern times, this may not be so in modern mass societies with access to
rapid means of communication and migration. When the German princes
negotiated with Bismarck, they still represented some form of regional identity.
When the West German Länder boundaries were redrawn after 1945, the
continued existence of such identities could be questioned. From a comparative
perspective, then, it has been suggested to distinguish between cases of cultural
federalism with strong sociological underpinnings and a tendency of
decentralization, and cases of merely territorial federalism with weak or non9
existent levels of sociological difference and centralizing tendencies (Erk
2008).
From a perspective of group liberty, however, this distinction overlooks
the extent to which patterns of regional identity and community may be rooted
in political culture rather than sociology. The reconstitution of the East German
Länder even before reunification, after forty years of unitary communism and
in the absence of any kind of deep cultural diversity, points to a long memory
of political community. The fact that in many if not most federations, regional
electorates vote for political party configurations in opposition to those
governing at the national level underscores the presence of diversity in political
culture.
A particularly puzzling yet instructive case is Australia, which is said to
be characterized not only by the absence of cultural diversity – an argument
that conveniently ignores the presence of a distinctly separate Aboriginal
culture - but moreover by a uniquely universal commitment to public policy
uniformity. This uniformity is brought about by intergovernmental cooperation
largely orchestrated by the Commonwealth government. The question arises
why Australians would not more simply satisfy their quest for uniformity by
reassigning public policy powers to the national government through
constitutional amendment. The answer given is that such amendments,
requiring a national referendum, would be rejected by the people (Saunders
2012). The people, in other words, seem to want uniformity that is nevertheless
delivered by a plural form of governance.
Group liberty means collective autonomy. It can be based on deep
cultural diversity such as in Belgium or in Canada. It can also be based on a
10
traditional or simply path-dependent preference for plural delivery of public
services. In federal systems with their combination of economic union and
divided jurisdiction, group liberty can only be meaningful if it is accompanied
by fiscal solidarity ensuring that, in the words of the Commonwealth Grants
Commission in Australia, “each would have the capacity to provide services at
the same standard” (2004).
(4) Checks and Balances
In one of the most famous passages of the Federalist Papers, a collection of 85
essays in defence of the American constitution written during the winter
months of 1787/88, James Madison speaks of the “double security” that arises
from a twofold separation of powers, horizontally between the three branches
of government, and vertically between the two levels of government (The
Federalist, No 51). While horizontal power separation has been an on-going
preoccupation in political thought since its first preformulation as a mixed
constitution in ancient Greece, the vertical dimension has been for the most
part neglected even when its practice was evident (Riklin 2006).
Such practice was the case in the Holy Roman Empire of which
it has been said that it was neither holy, nor Roman, nor an empire. Rather, the
idea of a universal Christian empire was superimposed upon a plurality of
dynastic realms. This idea of empire was problematic, as the rulers of these
realms would not recognize one of their own as superior. When the elected
emperor Sigismund summoned Europe’s rulers to the Council of Constance
(1414-18) “as per the Imperial office” (per imperiale officium), for instance,
the king of Aragon registered offence by replying that he “and other Spanish
11
kings do not recognize the emperor as superior” (et altres reys de Spanya non
regonexen per superior al emperador; Engels 1977: 377-78).
Eventually, Europe’s plural rulers settled upon a formula of divided and
shared rule that can be regarded as the first principled expression of a division
of powers. Developed by the jurists at various European courts, and
increasingly accepted from the 14th century onward, those rulers whose realms
showed de facto sovereignty and independence, were considered to have “as
much authority in regard to [their own] people as the emperor has in regard to
the whole” (rex imperator in regno suo; E. Lewis 1974: 456).
De facto sovereignty and independence meant that these rulers had the
means of withstanding attacks as well as the means with which, usually upon
counciliar agreement, they would support imperial causes. The empire was
characterized, in other words, by a kind of reverse VFI. Checks and balances as
intended by the rex imperator formula were materially underpinned by the
superior financial power of the empire’s member units. This was so also in the
case of Bismarck’s empire, which remained a “boarder” (Kostgänger) of the
Länder (Lehmbruch 2000: 61), and it still is the case in the European Union
even though its miniscule budget hardly constitutes a major bargaining chip.
In the modern federal state, however, there is the opposite situation
with central governments usually controlling the lion’s share of revenue. But
the same argument can be made e contrario: the federalist intention of mutual
control through balance requires that the constituent member units have
sufficiently autonomous and equal material strength to withstand central power
encroachments as well as asymmetrical power collusions. In this sense, fiscal
12
equalization must be automatic and guaranteed rather than dependent on the
goodwill of those stronger and richer.
Madison’s “double majority” argument is usually – and rightly –
interpreted as a conservative ploy against majority rule. Just how conservative
that argument is, however, depends on what is meant by majority rule. This is
not so much a matter of democracy as it is a matter of whether majority rule is
bound by the rule of law. The rule of law in turn is intrinsically linked to the
principle of power separation between functionally different branches of
government as it developed in 17th century England and found its most famous
expression in Montesquieu’s formula of “power as a check upon power” (le
pouvoir arrête le pouvoir; 1748: II. 4).
But, as Thomas Hobbes had already observed a century earlier, when
the different branches of government are all in agreement, the liberty of
citizens is by no means advanced (De Cive VII.4). The vertical division of
power adds to the horizontal separation an additional safeguard against the
accumulation of power in any one place. Therefore, as the founding fathers of
the West German republic understood quite well, urged on, as they were, by
the Allied victors looking over their shoulders, federalism is as intrinsic to the
rule of law as the horizontal separation of government functions. Therefore
also, just as judges are meant to be paid well to keep their independence as
guardians of the rule of law, the governments in federal systems must be
financially secure as guardians of political balance.
13
(5) Subsidiarity
The last and most boldly normative justification of fiscal equalization as a
precondition for equality, balance and stability in federal systems is grounded
in the principle of subsidiarity. In its most basic meaning, subsidiarity gives
expression to the idea that each political decision should be taken as closely as
possible to the people affected by it. This is fundamentally and normatively
different from the idea of dividing powers between two or three levels of
government.
The guiding rationale for power divisions is efficiency, which
commands that decisions that affect, or should affect, the entire population of a
federal system in the same way, are the ones that should be centralized. This
was the rationale for the centralizing thrust of modern welfare state building in
federal systems beginning with the American New Deal legislation in the
1930s. Subsidiarity runs counter to that efficiency rationale in that it postulates
that decisions should be taken at the lowest possible level of government even
when all member units share the same policy goal.
‘Possible’ in this context means that the goal can be achieved by
separate and decentralized action even if central action might be more efficient.
More efficient does not necessarily mean better in a qualitative sense. The
subsidiarity stipulations of the European Union unmistakably state that Union
action must lead to a demonstrably “better” result in both “qualitative and,
wherever possible quantitative” terms than individual member state action
(Lisbon Treaty, Protocol (2), Article 5). It does not say that Union action is
appropriate when the same result may be achieved more efficiently.
14
Similarly, the practice of Länder self-coordination in Germany is
underwritten by subsidiarity considerations. Centralizing education, for
instance, might be considered more efficient than agreement on transferrable
report cards through horizontal negotiation. Yet education and culture have
remained Länder responsibilities and hence closer to the people even though
the ultimate goal is harmonization or even uniformity. As the Bavarian
Minister President Hans Ehard admonished his colleageus early on, at a
meeting in 1954, centralization of policy issues in the common interest was not
desirable as long as the Länder would “manage to resolve them reasonably and
intelligently through mutual cooperation” (cited in Laufer and Münch 1998:
256).
When subsidiarity considerations entered the post-World War debate
on German federalism as a remedy against centralized Nazi totalitarianism, the
term was borrowed from Catholic social doctrine (Marquardt 1994), and it
entered the European subsidiarity debate in 1988 when then Commission
President Jacques Delors got an earful about it from the Minister Presidents of
the German Länder who feared that further European integration under the
Maastricht Treat sooner or later would infringe upon areas of exclusive Länder
power (Schaefer 1991). However, Delors’ own research team identified a
different and Protestant source of inspiration, the 1571 General Synod of the
Dutch Reformed Church in Emden, and the Politica of Althusius (Luyckx
1992).
While it certainly does not matter whether the insertion of the principle of
subsidiarity into the 1993 Maastricht Treaty was a Catholic or a Protestant
achievement, it is importantly instructive to bear in mind the differences
15
between these two conceptualizations of subsidiarity. The Catholic
conceptualization is enunciated in two papal encyclicals, Rerum Novarum
(1891) and Quadragesimo Anno (1981). Rerum Novarum stipulates that in the
regulation of human conduct “the law must not undertake more, nor proceed
further, than is required for the remedy of the evil or the removal of the
mischief.” Quadragesimo Anno then elaborates more precisely that it is “an
injustice and at the same time a grave evil and disturbance of right order to
assign to a greater and higher association what lesser and subordinate
organizations can do.” Those “in power” therefore should observe “the
principle of ‘subsidiary function’” by which a “graduated order is kept among
the various associations.”
At the 1571 General Synod at Emden, by comparison, it was resolved
that “provincial or general assemblies must not deliberate on matters already
decided at a lower level,” and that “they shall concern themselves only with
such matters as pertaining to all churches generally” (Die Akten 1971: 79-83).
And while Althusius does not use the term explicitly, subsidiarity nevertheless
permeates his entire theory as a political code (Føllesdal 1998). The Althusian
commonwealth comprises a plurality of smaller and larger political
communities or “consociations.” Justice requires that “the rights of each
member must be preserved and not diminished or augmented at the cost of
another (membro cuilibet suum jus conservetur, non miniatur, aut in
perniciem alterius augeatur; Politica XXIX: 2). And what these rights are at
each level of consociation is determined by common agreement among its
members (Hueglin 1999).
16
The difference between these two understandings of subsidiarity is the
following: While the intention of Catholic social doctrine is “to determine the
bounds of the private sphere,” the Protestant conceptualization, as also evident
in German or European Union federalism, is concerned with “the allocation of
power within the public sphere” (Barber 2005: 313). Subsidiarity in this latter
understanding, in other words, cannot be invoked as an argument simply for
less government as it was by Rick Santorum, a Catholic social conservative
and one of the contenders for the Republican nomination in the 2012 American
presidential election, who referred to subsidiarity as a defence for his
involvement in President Bill Clinton’s 1996 Personal Responsibility and
Work Opportunity Reconciliation Act, which allowed contracting out welfare
services to charitable, religious and other private institutions (Gerson 2012).
In the context of federalism, subsidiarity means, then, in accordance
with its Althusian/European understanding, appropriate allocation of public
power at the lowest possible level of government. But as Althusius advised his
readers, subsidiarity in the context of federalism is as much a constructive
principle for the retention of particular autonomy as a commitment to common
social and regional balance. This commitment “requires the faculties, strength,
aid and dedication of all” (omnium facultates, vires, auxulia & sanguinem
requirit; Politica XVII. 60). Subsidiarity is a “modality of solidarity”
(Buttiglione 1994: 49).
But it is a modality of public solidarity pointing to organized and
accountable political cooperation. This is how it is different from private
charity. It cannot be misconstrued as a concept allowing for the maximization
of particular self-interest or parochial withdrawal from common responsibility.
17
In this way, subsidiarity sums up all the characteristics of a just and equitable
federal order compelling its members to fiscal equalization as a precondition of
balance and stability: federal comity, member equality, group liberty, and the
rule of law secured by the plural allocation of political power.
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